The Court of Justice of the European Union (“CJEU”) recently gave judgment in the form of a preliminary reference in the dispute between Coty Germany GmbH (“Coty”) (the exclusive licensees of the ‘Davidoff Hot Water’ Community Trade Mark (“CTM”) for perfume) and Stadtsparkasse Magdeburg (a German bank). The preliminary reference related to whether the Stadtsparkasse Magdeburg could invoke banking secrecy in order to withhold information about an account holder, the alleged seller of a counterfeit perfume bottle bearing the CTM, notwithstanding the right to information in the context of proceedings for the infringement of an intellectual property right under Article 8 of the IP Rights Enforcement Directive 2004/48 (“the Directive”).

In January 2011 Coty purchased a bottle of perfume bearing the CTM on an internet auction platform, paying the purchase price into a Stadtsparkasse bank account supplied to it by the seller. Upon realising they had purchased a counterfeit product Coty asked the platform to provide them with the account holder’s real name (the sale having been made under an alias).

Coty then sought the name and address of the holder of the bank account from Stadtsparkasse, who refused to provide them, invoking banking secrecy under German law.

Coty’s initial Order against the Bank to provide the requested information was overturned on appeal. The case progressed to the German Federal Court of Justice, which made the request for a preliminary reference.

The CJEU answered that Article 8(3)(e) of the Directive must be interpreted as precluding a national provision, which grants a banking institution an unlimited ability to invoke banking secrecy in order to refuse to provide information pursuant to the Directive concerning the name and address of an account holder. In reaching this decision the CJEU considered how such a national provision, taken in isolation, does not ensure a fair balance between various fundamental rights as it unduly gave priority to consumers’ rights to protection of personal data over rights holders’ interests. 

The case will now return to the German court for a final ruling.